RESIDENTIAL APARTMENTS IN COMMERCIAL ZONES

SB0131

SENATE BILL 131

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Antonio Maestas
and
Heather Berghmans

AN ACT

RELATING TO PROPERTY; ELIMINATING RESTRICTIONS ON BUILDING
HEIGHT AND NUMBER OF STORIES; ALLOWING RESIDENTIAL APARTMENTS
IN COMMERCIAL ZONES; ALLOWING SMALL-SCALE COMMERCIAL USES IN
RESIDENTIAL ZONES; ALLOWING DUPLEXES AND TOWNHOUSES IN
RESIDENTIAL ZONES AND MIXED-USE LOTS; ALLOWING ADDITIONAL
DWELLING UNITS IN SINGLE-FAMILY ZONING DISTRICTS; PROHIBITING
MINIMUM PARKING MANDATES; CREATING AN EXCEPTION FOR ACCESSIBLE
PARKING; REVISING THE APPEAL PROCESS; AMENDING, REPEALING AND
ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section 3-21-1 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-20-1, as amended) is amended to read:

"3-21-1. ZONING--AUTHORITY OF COUNTY OR MUNICIPALITY.--

A. For the purpose of promoting health, safety,
morals or the general welfare, a county or municipality is a
zoning authority and:

(1)
may regulate and restrict within its
jurisdiction the:

[
(1) height, number of stories and
]
(a)

size of buildings and other structures;

[
(2)
]
(b)
percentage of a lot that may
be occupied;

[
(3)
]
(c)
size of yards, courts and
other open space;

[
(4)
]
(d)
density of population; and

[
(5)
]
(e)
location and use of buildings,
structures and land for trade, industry, residence or other
purposes;

[
B. The county or municipal zoning authority

(2)
may:

[
(1)
]
(a)
divide the territory under its
jurisdiction into districts of such number, shape, area and
form as is necessary to carry out the purposes of Sections
3-21-1 through 3-21-14 NMSA 1978; [
and

(2)
]
(b)
regulate or restrict the
erection, construction, reconstruction, alteration, repair or
use of buildings, structures or land in each district. All
such regulations shall be uniform for each class or kind of
buildings within each district, but regulation in one district
may differ from regulation in another district;
and

(c) accommodate one additional dwelling
unit within each lot in a single-family zoning district as a
permissive use;

(3) shall eliminate restrictions on building
height and number of stories;

(4) shall not prohibit residential apartments
in commercial zones;

(5) except as provided in this section, shall
not prohibit duplexes and townhouses in residential zones or on
mixed-use lots; and

(6) shall allow in residential zones
development for small-scale commercial uses that provide
neighborhood-scale convenience shopping, food, beverages,
indoor entertainment or professional offices; provided that the
uses comply with local rules governing traffic and noise
.

[
C. All
]
B.
State-licensed or state-operated
community residences for persons with a mental or developmental
disability and serving ten or fewer persons may be considered a
residential use of property for purposes of zoning and may be
permitted use in all districts in which residential uses are
permitted generally, including particularly residential zones
for single-family dwellings.

[
D.
]
C.
A board of county commissioners of the
county in which the greatest amount of the territory of the
petitioning village, community, neighborhood or district lies
may declare by ordinance that a village, community,
neighborhood or district is a "traditional historic community"
upon petition by twenty-five percent or more of the qualified
electors of the territory within the village, community,
neighborhood or district requesting the designation. The
number of qualified electors shall be based on county records
as of the date of the last general election.

[
E. Any
]
D. A
village, community, neighborhood or
district that is declared a traditional historic community
shall be excluded from the extraterritorial zone and
extraterritorial zoning authority of [
any
]
a
municipality whose
extraterritorial zoning authority extends to include all or a
portion of the traditional historic community and shall be
subject to the zoning jurisdiction of the county in which the
greatest portion of the traditional historic community lies.

[
F.
]
E.
Zoning authorities, including zoning
authorities of home rule municipalities, shall accommodate
multigenerational housing by creating a mechanism to allow up
to two kitchens within a single-family zoning district, such as
conditional use permits.

[
G.
]
F.
For the purpose of this section,
"multigenerational" means any number of persons related by
blood, common ancestry, marriage, guardianship or adoption."

SECTION 2.
Section 3-21-8 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-20-6, as amended) is amended to read:

"3-21-8. APPEALS TO ZONING AUTHORITY--GROUNDS--STAY OF
PROCEEDINGS.--

[
A. The zoning authority shall provide by
resolution the procedure to be followed in considering appeals
allowed by this section.

B.
]
A.
Any aggrieved person or any officer,
department, board or bureau of the zoning authority affected by
a decision of an administrative officer, commission or
committee in the enforcement of Sections 3-21-1 through 3-21-14
NMSA 1978 or ordinance, resolution, rule or regulation adopted
pursuant to these sections may appeal [
to the zoning authority.
An appeal shall stay all proceedings in furtherance of the
action appealed unless the officer, commission or committee
from whom the appeal is taken certifies that by reason of facts
stated in the certificate, a stay would cause imminent peril of
life or property. Upon certification
]
the decision pursuant to
the provisions of Section 39-3-1.1 NMSA 1978
. The proceedings
shall not be stayed except by order of district court after
notice to the official, commission or committee from whom the
appeal is taken and on due cause shown.

[
C.
]
B.
When an appeal alleges that there is error
in any order, requirement, decision or determination by an
administrative official, commission or committee in the
enforcement of Sections 3-21-1 through 3-21-14 NMSA 1978 or any
ordinance, resolution, rule or regulation adopted pursuant to
these sections, the [
zoning authority by a majority vote of all
its members
]
district court
may:

(1) authorize, in appropriate cases and
subject to appropriate conditions and safeguards, variances or
special exceptions from the terms of the zoning ordinance or
resolution:

(a) that are not contrary

to the public interest;

(b) where, owing to special conditions,
a literal enforcement of the zoning ordinance will result in
unnecessary hardship;

(c) so that the spirit of the zoning
ordinance is observed and substantial justice done; and

(d) so that the goals and policies of
the comprehensive plan are implemented; or

(2) in conformity with Sections 3-21-1 through
3-21-14 NMSA 1978:

(a) reverse any order, requirement,
decision or determination of an administrative official,
commission or committee;

(b) decide in favor of the appellant; or

(c) make any change in any order,
requirement, decision or determination of an administrative
official, commission or committee."

SECTION 3.
A new section of Chapter 3, Article 21 NMSA
1978 is enacted to read:

"[
NEW MATERIAL
] ZONING APPLICATIONS--REVIEW AND
APPROVAL.--

A. Applications seeking approval of uses that are
not permitted by right in a zoning ordinance, including
conditional use permits, special use permits and special
exceptions or use variances, shall be submitted to and decided
only by a hearing officer delegated by a county or municipal
zoning authority.

B. Applications to check zoning compliance for
development proposals, including site plans and site
development plans, shall be reviewed and decided
administratively by designated staff of the local
jurisdiction."

SECTION 4.
[
NEW MATERIAL
] MINIMUM PARKING MANDATES
PROHIBITED.--

A. As used in this section, "minimum parking
mandate" means a law, a rule or an ordinance that specifies a
minimum number of off-street vehicle parking spaces, including
within a garage or other enclosed area.

B. A political subdivision shall not impose minimum
parking mandates for residential, commercial or industrial
properties within the political subdivision's jurisdiction.

C. Nothing in this section prevents a political
subdivision from passing a minimum parking mandate related to
accessible parking spaces.

SECTION 5.
REPEAL.--Section 3-21-9 NMSA 1978 (being Laws
1965, Chapter 300, Section 14-20-7, as amended) is repealed.

SECTION 6.
APPLICABILITY.--The provisions of Sections 2
and 3 of this act apply to decisions issued and enforcement
actions commenced after June 30, 2026.

- 8 -